French Judge Orders Refund For Pre-Installed XP

Racketiciel writes "A French user asked for a refund after buying an ASUS computer that came with Windows XP and other software pre-installed. ASUS tried to apply a procedure which cost more money to the consumer than they will give back... The court ruled in favor of the user, who received back 130 Euro (~200 $) for the software. Here is the ruling (PDF, French). In France, this is the fourth victory for refund seekers during the last two years, and many people are now filing for refunds (in French). Two French associations (AFUL and April) published a press release on this victory the same day an important hearing happened." The English-language press release linked above gives a pretty good idea of what happened here, for those unsuited to wading through French.

I see that the French term for OS is...

.."système d'exploitation". In the case of Windows, that seems appropriate.

Re:I see that the French term for OS is...

The best part is that the abbreviation is SEX. It's not even a joke.

'Tied Selling' is illegal in many states.

Tied selling, whether applied to banks forcing you to buy insurance to get a loan, even when you are already insured, or to buying a PC with MS Windows pre-installed, is illegal in many jurisdictions. The MS EULA also says something to the effect that you can refuse to use it and get a refund. These lawsuits simply hold the sellers responsible for all their promises.

Re:How does this make sense?

Do Asus sell computers without Windows pre-installed in France? My French isn't good enough to find out, so if you could provide the link to this, it would be much appreciated for the rest of us /. readers not au fait with French.

Re:How does this make sense?

ASUS in France offers to buy back the Windows license, but the user must ship the computer two ways at his own expense, and he gets only 25 Euros back for the Windows license, and ASUS can keep the computer as long as they want to do that. French law forbids tie-ins, such as forcing someone to buy a computer with an OS already installed. The court felt that the 25 Euros combined with the cost of shipping the computer both ways and the fact that the procedure had undetermined duration was effectively discouraging the user from using that capability. Therefore ASUS lost.

Re:How does this make sense?

Does your car dealer sell you a car, you drive it away, then when you go to use the power windows it pops up an EULA with onerous terms that you don't agree to?

Re:How does this make sense?

Here in France it's forbidden by law to sell a product only if you also buy another: the customer must be able to buy it alone. You car analogy is bad because the "whole" car is considered as a single product, while the computer is a product without it's operating system. And even if you don't agree with this concept or anything, that's not the point here: since it's forbidden by law, any customer who asks a refund (without previously using the packed Windows of course) will win in court. That doesn't mean they have to sell computers without operating systems at all, they only need to give a *real* way to get a refund. Not asus' crappy "yeah we keep your computer for a month and you pay the shipping too, then we give you back 30euros".

Re:How does this make sense?

Thats complete and utter BS.

If I wanted an ASUS Computer, I should be able to buy JUST THAT. Most manufacturers still dont have a "No OS" option for their configured systems, and I'm damn sure that there isn't a single computer sold in a retail store that has "No OS" as an optional package(at least in the US).

Look, if the guy doesn't want to pay the Microsoft Tax, then he shouldn't have to. Last time I checked, they were 2 completely seperate companies, ASUS and Microsoft. Imagine that if every manufacturer pre-installed a $1000 copy of Adobe CS3 and you couldn't opt out of it, wouldn't you be a little pissed off? Wouldn't you feel that you'd have the right to get your money back for something you didn't want in the first place? This isn't the slightest bit different. Not to mention the whole EULA problem. If you can't see the EULA before you purchase something, you can't just say "Oh, well, I won't buy this then". If he didn't agree with the EULA upon starting his computer (which it may not have even appeared, if ASUS preinstalled XP, which would create a whole new problem in itself) then he has every right to tell ASUS to kiss his ass and give him his money back.

Re:How does this make sense? Easily

Your analogy is not sound, you _can_ buy a car without power windows or AC, it's extremely difficult to buy a computer without a Microsoft operating system.

The computer was sold with XP pre-installed & a "shrink-wrapped" EULA. She wanted a computer but not XP, but was unable to buy a computer without XP pre-installed. This is generally called "The Microsoft Tax", because people who buy computers in order to run other Operating Systems (yes there are others) are forced to pay this tax.

She didn't want to pay this "tax" so asked to be refunded the cost of XP.

Re:How does this make sense?

To me this feels like she bought a car with power windows and AC then went back to the place that sold her the vehicle and forced them to take out the parts.

Nah, that's a bullshit analogy. That's like your saying that a car needs power windows or AC to be usable - it's as if you're saying that an OS is an optional extra.

To be really useful cars, whether or not they have AC, need roads. Even off-road cars don't last long without them. Roads are the things that facilitate the application of the tool (car) to the task (transport), much like computer operating systems are to computers.

For a better analogy, try this:

To me this feels like she bought a car with power windows and AC then went back to the place that sold her the vehicle, complained that it only allowed her to drive between the car dealer, a MacDonalds and the local infectious diseases clinic, charged tolls on otherwise free roads and the stereo automatically put earplugs in the ears of her passengers when she listened to the stereo. She forced them to allow her to drive her car wherever the fuck she wanted and give her a new stereo.

See the difference?

Re:How does this make sense?

The fact is, Windows is being FORCED on people.

Next time you buy a computer order it without a hard drive, and then order whatever hard drive you want separately... this has worked for me several times in the past.

Re:How does this make sense?

Those people don't care about the choice and wouldn't know how to make it if one were present. The exceptions to that statement buy Macs.

Re:I'm torn about this subject

You knew what the EULA was. Don't like it?

But if i'm not mistaken the EULA does say "Click Disagree" and then take it back for a refund?

Re:I'm torn about this subject

Explicitly stated in the EULA:

if you do not agree, do not install, copy, or use the software; you may return it to your place of purchase for a full refund, if applicable.

Re:I'm torn about this subject

The EULA includes the option to reject it. And ProCD, the leading case for the enforceability of EULAs, supports the proposition that a EULA wouldn't be enforceable if you couldn't reject it and return the software for a refund. If people weren't supposed to be free to take advantage of the option, it wouldn't be there. So no, people shouldn't be stuck with it.

Re:I'm torn about this subject

Tying a product with something else violates article L122-1 of the French law. The argument is that some giant corporation might convince or coerce somebody to bundle one of its products, creating a de facto monopoly. This is the same reason no telecom operator can force you to buy a subscription with your iPhone.

If you don't like the law, stay out of France. The majority of the population here like it very much as it keeps the competition alive and healthy.

Re:I'm torn about this subject

In fact... if I'm not mistaken, France was the first country in which an unlocked iPhone was required to be offered as an alternative to the usual operator lock-in.

Facilitating a monopoly

Sure, you have a choice of PC with windows or nothing. It is a packaged deal, but they don't offer choices apart from the monopolistic one.

Unlike USA - where the DOJ's anti-trust ruling has no real impact on MS's business - the Eurpoeans take this more seriously. They feel that there should be options other than the monopolistic one.

Forcing vendors to give back more than the XP cost sends a clear message: give non-MS options or feel the pain.

That will force them to give options

If you look at the extra USD100 as punitive damages it is not so bad.

This will force the PC vendors (in France anyway) to provide better Linux options.

Re:That will force them to give options

It doesn't force them to consider Linux at all, there's no law on the books that says "if Windows is a pain in the ass, you must offer Linux."

What it will do is encourage the companies to not force bundled software. Either they'll make a point of selling bare-bones PC's, or they'll start honoring refund requests. If their licensing with Microsoft prevents that, then maybe they'll consider another operating system (which Microsoft would never allow to happen, Microsoft will just lower the price of licensing to make sure sales continue).

Nothing says it'd have to be Linux, it could be joe schmoes Perl-based OS if that's what Asus thought was a good deal for customers.

Re:French

Can't MS just send some programmers over there to take over the country?
It's not like they'd put up a fight...

You mean, like they did when they defeated the British Army and won the American War of Independence?

Re:English grass

When do two wrongs make a right?

What's wrong with a consumer having rights, and not being forced to buy something they don't want because it's tied by a convicted monopolist to something they *do* want?

The *real* second wrong here is that the person had to go to court to get what they should have been able to buy in the first place.

Re:English grass

So... people should have to pay in order to NOT have this crap pre-installed on computers they buy, so as not to hurt poor little Asus? A simple request should damn well be enough not to have a ton crap I don't want on the computer I'm already paying for. I shouldn't have to pay extra to get it removed. (This is part of why I always build my own.) You say two wrongs don't make a right, but how the hell is it wrong for a court to rule that the consumer has the right to buy a computer without crap pre-installed on it without paying extra?

Re:French

What surprises me is that the French got labelled as surrender-happy, when Norway, Netherlands, Belgium and Luxembourg all did the same thing, not to mention the Italians which switched sides in both world wars to avoid being the losing side.

Btw France fought tooth and nail in the first world war, so its not from that (and it certainly wasn't taken over, you might want to brush up on history a bit :P ).

Learn from history

You MUST be an american. I know of no german speaking like this. For a simple reason : they get history taught in college there. France was not "taken over" in both world war, only 1. The "great war" the trench/battle limit went back and forth north of France, but nobody took over France. For the second war, what did you expect them ? To die like a single man ? Are you for real ? You are aware that "die in honor" is an outdated previous century concept, and all modern commander would accept surrendering ? There was no cowardiness shown by france during WW2, don't get me started also on resistance and the work thereof under extremly awful condition (torture, execution, hostage killing etc...). And by perpetuating this mostly US joke, all you show is your pettiness of spirit. Jeez and I bet you will be one of the first to complain that french give you the finger.